Beware the enemy within

DIRECtOR INDuStRIAl RElAtIONS CAMERON SPENCE

wHAt is A workPlACe relAtions MAnAgeMent PlAn?

In the previous edition of Building News, I wrote that the ABCC was going to change behaviour in the building and construction industry, not by targeting unions but by targeting business. Workplace Relations Management Plans (WRMPs) are the main tool that the ABCC will use to ensure that these new standards are really being met.

WRMPs are important, they are where the rubber meets the road and they need to be understood. It’s a fairly straightforward plan;

The head contractor tenders for a job; The head contractor is then informed (if applicable) that they must do a WRMP due to the amount of Commonwealth money in the job, this means the tenderer has been shortlisted for the job and there is enough Commonwealth money in the job to require a WRMP; The head contractor submits the WRMP to the funding entity (the body that released the EOI); The WRMP is then forwarded by the funding entity to the ABCC to be assessed (NB: the head contractor cannot send a WRMP directly to the ABCC); The WRMP is assessed by the ABCC and if successful the tender can be awarded; The Head Contractor must then comply with the WRMP on that job; If there is an examination of Industrial Relations behaviour on the job, the WRMP will be used to measure the head contractor’s actual performance against what they said that they would do in the WRMP.

Simply put – the WRMP is what the head contractor promises to do and details how they will do it. The ABCC assess the WRMP, keeps it, and (if there’s an investigation) holds you to it. Here’s the plan in a bit more detail.

Why have a WRMP?

It’s required by law. The WRMP is required under Section 25 of the 2016 Building Code. If you’re a head contractor and the job you’re tendering for has more than $10 million of Commonwealth money in it (or there is $5 million Commonwealth dollars in the job and this sum represents 50% or more of the total construction value) then you must have an approved WRMP. A WRMP is intended to be a comprehensive, practical plan that details just how a tenderer will comply with the requirements of the 2016 Building Code on a particular project.

As soon as practicable after a funding entity or recipient issues a request for expression of interest (EOI) or requests for tender (RFT) (however it is described) for building work, the funding entity must inform the ABCC.

Tenderers will be advised by the funding entity or recipient if a WRMP is required for a particular project. Importantly, a funding entity or recipient must not award a tender to a respondent unless that respondent’s WRMP has been approved by the ABCC.

What’s in a WRMP?

Section 32 of the 2016 Building Code provides that a WRMP must set out a head contractor’s proposed systems, processes and procedures to: • clearly and effectively communicate how the Building Code requirements apply to all building industry participants on site; • promote a fair, lawful, efficient and productive workplace; and • deliver the project on time and within budget. • A WRMP must also include: • a Fitness for Work policy to manage alcohol and other drugs in the workplace that covers the matters set out in Schedule 4 of the Building Code 2016; and • details of the processes to ensure that security of payment laws and other requirements will be adhered to throughout the life of the project.

Remember, the WRMP is the measuring stick that the ABCC is going to hold up to a head contractor after the tender has been awarded. With that in mind, it’s vital to remember one thing… DO NOT CUT AND PASTE YOUR WRMP! Each WRMP should must respond to a tender for a particular job (even though they may have some similarities from job to job) because to paraphrase a well-known line from TV police dramas, whatever is written in the WRMP may later be used against you in a court of law, and if what is in the WRMP is not what’s happening on that job – there may be trouble

The ABCC will then assess your MRMP (but you don’t send it to them).

As part of submitting a tender response for relevant Commonwealth building work projects, tenderers are required to submit their proposed WRMP for the project to the funding entity or recipient along with their tender documents. WRMPs cannot be submitted

by a tenderer directly to the ABCC. Any WRMP submitted directly to the ABCC will not be assessed.

As part of the tender evaluation process funding entities and recipients will apply to the ABCC for approval of the WRMPs of short listed respondents. All tenderer interaction from the ABCC around a project specific WRMP will be with the funding entity or recipient.

The ABCC will review the WRMPs submitted by a funding entity or recipient to ensure each WRMP addresses all of the requirements of the Building Code. The WRMP must address the requirements in section 32 of the Building Code 2016, and the requirements in Schedule 3 of the Building Code as advised by the funding entity or recipient.

The ABCC will provide the funding entity or recipient with an assessment record for each assessed WRMP. This record will indicate whether the WRMP has been approved or not, including specific changes required where the WRMP was not approved. If the ABCC does not have sufficient information to approve the proposed WRMP, the funding entity or recipient may ask a tenderer to provide an updated WRMP for approval, and the funding entity or recipient may reapply for approval of a short listed respondent’s updated WRMP.

Under the Code, a funding entity or must not enter into a contract with a tenderer if their WRMP has not been approved by the ABCC.

Compliance with an Approved WRMP

The Building Code requires head contractors to comply with their WRMP. This is a critical part of a head contractor’s compliance obligations. A failure of a head contractor to comply with its WRMP for a project is a breach of the Building Code.

Head contractors must also, as far as is reasonably practicable, ensure that subcontractors comply with the head contractor’s WRMP. A failure by a subcontractor to comply with a head contractor’s WRMP may result in a breach of the Building Code by the head contractor.

What happened to the old DEEWR letter?

This has been subsumed by the ABCC. Subcontractors can apply to the ABCC for a letter of compliance and/or complete a self-declaration. Given that under the new rules, the head contractor is, as far as reasonably practical, responsible for the subcontractor on the job, it is strongly encouraged that all head contractors ensure that their subbies have up to date letters of compliance and/or declarations.

There is a Model WMRP

The ABCC has developed a guide, which includes a model WRMP, to assist tenderers in meeting their obligations under the 2016 Building Code. Tenderers are requested to follow the structure and format of the model when developing their own WRMPs.

This model WRMP includes references to matters listed in Schedule 3 of the Building Code 2016. A WRMP may not be required to address all these matters. Tenderers will be advised by the funding entity or recipient which sections need to be addressed. Tenderers may choose to voluntarily address all of the matters set out in Schedule 3 as a matter of best practice.

A copy of the model WRMP is available for download from the ABCC website.

Members with queries are encouraged to contact the MBA Canberra IR team on 02 6175 5921

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